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In Telemarketing Case Jen Shah of RHOSLC Loses On Bid To Exclude Post-Arrest Statement

By Matthew Russell Lee, Patreon Order
BBC The Times (UK) Honduras - The Source

SDNY COURTHOUSE, August 5 –  Five defendants in a telemarketing scheme were presented past 8 pm on November 20, 2019 in the Magistrates Court of the U.S. District Court for the Southern District of New York.

The government proposed that while they could be released on their own signatures that night, but asked that they get pre-approval from Pre-Trial Services for any expenditure above $10,000. 

 On April 2, 2021 Jen Shah of Real Housewifes Of Salt Lake City was arraigned in the same case - and a $1 million bond, with $250,000 of it secured by case or property, required. Inner City Press live tweeted it, below.

Now on August 5, Shah and a co-defendant have had a slew of motions denied. Order. From Judge Stein: "Shah's motion sought an order (1) dismissing the superseding indictment, (2) compelling the government to provide a bill of particulars, (3) suppressing evidence seized pursuant to two search warrants, or alternatively for an evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), (4) granting review of the grand jury minutes, (5) compelling discovery of Brady and Giglio material, as well as the post-arrest statements of co-defendant Stuart Smith, and (6) suppressing Shah's post-arrest statements in their entirety. (ECF Nos. 259, 260.)...

"Shah moves to suppress her March 30, 2021 post-arrest statements, or in the alternative for a suppression hearing, on the grounds that her statements were involuntary. (ECF No. 260 at 48.) The government bears the burden of demonstrating by a preponderance of the evidence that a defendant has waived her constitutional rights under Miranda v. Arizona, 384 U.S. 436 (1966). See United States v. Lynch, 92 F.3d 62, 65 (2d Cir. 1996). "To prove a valid waiver, the government must show (1) that the relinquishment of the defendant's rights was voluntary, and (2) that the defendant had a full awareness of the right being waived and of the consequences of waiving that right." United States v. Jaswal, 47 F.3d 539, 542 (2d Cir. 1995) (citations omitted). A Miranda waiver is voluntary "when the relinquishment is the product of a free and deliberate choice rather than intimidation, coercion, or deception." Medina, 19 F. Supp. 3d at 538 (internal quotation and quotation marks omitted). "Coercive police activity is 'a necessary predicate' to finding that a waiver of Miranda rights was not voluntary." Coronado v. Lefevre, 748 F. Supp. 131, 139 (S.D.N.Y. 1990) (quoting Colorado v. Connelly, 479 U.S. 157, 167 (1986)). The key inquiry is whether "the defendant's will was overborne by the [law enforcement] agent's conduct." United States v. Anderson, 929 F.2d 96, 99 (2d Cir. 1991). Voluntariness is assessed by looking to the totality of the circumstances. See United States v. Male Juvenile (95-CR-1074), 121 F.3d 34, 40 (2d Cir. 1997). Shah contends that the waiver of Miranda rights she concedes she signed was involuntary because 1) law enforcement supposedly misled her by telling her that they "just wanted to talk" to her, while their true purpose was to elicit incriminating statements from her, 2) she lacks experience and sophistication with the criminal justice system, 3) she was "confused and emotionally off-balance" at the time of the interrogation due to her misapprehension that an individual who had assaulted her in the past was somehow involved, and 4) she "was unable to read" the Miranda waiver she signed because she did not have her reading glasses and her contact lenses were blurry. (ECF No. 260 at 53-54; Shah Deel. circir 14, 20-21.) Considering the totality of the above circumstances taken from the affidavits in the record, as well as the fact that the Court has listened to a recording of the interrogation, the Court finds that Shah's Miranda waiver was decidedly voluntary. First, Detective Bastos' statements to the effect that he "just wanted to talk to [Shah]" do not rise to the level of coercion because they were not misleading enough to cause Shah to believe she was only being detained for the purpose of providing information to law enforcement. (Shah Deel. cir 16.) Before Bastos drove Shah to ICE headquarters, he informed Shah that he had a warrant for her arrest. (Id. cir 13.) Because Bastos' actions, including taking Shah to an interrogation room at ICE headquarters and handcuffing her to a chair (id. cir 19), were sufficient to demonstrate to defendant that she was, in fact, under arrest, the circumstances of her interrogation fail to constitute police coercion, even considering her asserted inexperience with the criminal justice system. See Illinois v. Perkins, 496 U.S. 292, 100 (2d Cir. 1990) ("Ploys to mislead a suspect or lull him into a false sense of security that do not rise to the level of compulsion or coercion to speak are not within Miranda's concerns."). Nor did Shah's difficulty reading due to the claimed dryness of her contact lenses affect the voluntariness of her waiver. In addition to showing Shah the Miranda waiver form, Bastos read each question aloud. (See ECF No. 290 Ex. 1). Shah placed her initials next to each of her rights on the form to indicate she understood them. (see Id. Ex. 2.) She also signed the portion of the form stating: "I have read, or someone has read to me, this statement of my rights and I understand what my rights are, at this time I am willing to answer questions without a lawyer present." (Id.) Although Shah did tell the agent and Bastos that her contacts were blurry at some point after she signed the form, (see id. Ex. 1 at 00:03:00-00:06:04), both the Special Agent in attendance and Bastos allowed her to fix them before they began actually questioning her... Finally, the Court finds that Shah's purported anxiety that the individual who had assaulted her in the past was implicated in the circumstances of her arrest did not factor into her mental state enough to overbear her will, especially considering that she did not raise any concern that he was involved in the situation at any point during the interrogation. (See generally ECF No. 290 Ex. 1.) Shah's waiver of her Miranda rights was knowing and voluntary."  Full order on Inner City Press' DocumentCloud here. Watch this site.

 On July 26, 2021, some earlier drama: the US Attorney's Office in the wider case on July 22 filed a sentencing memo, for Derrck Larkin and Joseph DePaolo, which listed in Tier A culpability "Jennifer Shah."

Her lawyer fired back on July 26 asking to have its stricken, as unadjudicated conduct.

Now on August 3, another sentencing in the case: JUDGMENT IN A CRIMINAL CASE as to Joseph Depaola (8). The Defendant pleaded guilty to Count One in the Indictment. IMPRISONMENT: 30 months. The court makes the following recommendations to the Bureau of Prisons: That defendant be incarcerated in a facility in order to facilitate visits with his family who live in New Jersey. SUPERVISED RELEASE: Three years. ASSESSMENT: $100.00 due immediately. (Signed by Judge Sidney H. Stein on 8/3/2021). Watch this site.

SDNY Judge Sidney Stein tried to do this arraignment on March 31, but the technology broke down. Now there's an echo but it's going forward. Judge Stein: Ms. Shah, have you read the indictment? Shah: Yes, I have. And I waive the public reading.

Judge Stein: How do you plead to charges of conspiracy to commit wire fraud, and money laundering? Shah: Not guilty. Judge Stein: Let me turn to Mr. Smith.

 Judge Stein: Mr. Smith, how do you plead? Smith: Not guilty. Judge Stein: Let's talk about bail conditions. Ms. Shah you were released by a Magistrate in Utah.

Assistant US Attorney: We have a proposal on conditions. There are some on which there is a dispute.

AUSA: In Utah, Ms. Shah posted no cash. We propose a $1 million bond, secured by $250,000 in cash or property. On no contact with witnesses and victims, we want to specify that means those who purchased services, or sold them on sales floors. She can travel to DC

Judge Stein: You proposed no disbursements over $10,000 without permission. I'm going to lower it to $5000.  Defense: She is on Real Housewives of Salt Lake City but she doesn't take any credit cards for that.

Judge: Does the government have possession of Ms. Shah's passport? AUSA: It was expired, and we took it. If she has another, she should surrender it. Judge: What is the risk of flight? Ms. Shah, I've come to learn, is a participant in a popular television show.

 Judge: She is active on social media. It is unlikely she could disappear.

AUSA: We will make a proffer.  [Meanwhile, it dawns on Inner City Press these two are part of the largest US v. Cheedie case Inner City Press has covered, here

AUSA: The penalties for $5 million money laundering, it is not clear she would remain a public persona. In any event the persona is insufficient to ensure her return to court. So, a modest security. Judge: Is $250,000 modest? AUSA: She has access to it.

 Judge Stein: Let me here from the defense. Defense: We do not believe she has any active passport. She had hired us to defend her - she wants to fight this. Cash bond in not favored anyway around the country.

 Judge Stein: Does she receive a salary from any of her businesses, including the Real Housewives franchise? Defense: I don't know, I haven't spoken with my client about that.

2d Defense lawyer: She is an entrepreneur. She makes some money from the show, yes.

 Judge Stein: There is a risk of flight. It's not insubstantial. I'm to have her continued released, on condition of a bond of $1 million, with $250,000 secured by cash or property and 2 co-signers.

Judge Stein: She is to continue with her treatment. She can accept credit card charges for other businesses. No telemarketing.

Defense: Could we have 2 weeks for $250,000, since we're in Utah?

AUSA: Bonds can be handled remotely. 1 week.

Judge Stein: I'll do 2 weeks.

The case is US v. Cheedie, et al, 19-cr-833 (Stein).


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